New Illinois Spousal Maintenance Law Takes Effect on January 1, 2015
Much of the existing law will remain the same, such as the threshold determination of whether a maintenance award is even appropriate. The factors considered in arriving at that determination include the income and property of each spouse; the needs of each spouse; earning capacity of each spouse; any impairment of earning capacity due to a spouse’s devotion to domestic duties; time necessary to rehabilitate earning capacity; standard of living during the marriage; duration of marriage; age and health of each spouse; tax consequences of the division of property; contribution towards the other spouses education, training, and career advancement; agreements between the spouses, and any other factor the court expressly finds to be just and equitable.
Once the court makes the decision that an award of maintenance is appropriate, then examination of the new guidelines will be considered. While the law does allow the court to retain discretion in deviating from the guideline formula, specific factual findings (reasons) for the deviation must be given by the court.
Determination of the amount of maintenance will be calculated by taking 30% of the payor’s gross income and subtracting 20% of the payee’s income. The difference will be the maintenance award amount. However, if the amount of the award when added to the payee’s gross income exceeds 40% of the parties combined gross income, the award will be reduced to the 40% ceiling.
The new guidelines then create a set formula for determining the duration of a maintenance award which is calculated by multiplying the length of the marriage by one of the following factors: 0-5 years (.20); 5-10 years (.40); 10-15 years (.60); 15-20 years (.80) and for marriages 20 year or longer, permanent maintenance or for at least the duration of the marriage shall be awarded.
The gist of this new law has caused both positive and negative reaction from the legal community. Combined with a child support obligation, these new guidelines will have a significant and possibly unfair burden on the paying spouse, time will tell. Prenuptial agreements, on the other hand, may provide couples with issues of disparity of income and disparity of premarital assets the best opportunity to ensure predictability and plan their future with more security.